Black Box Government: The Whole Picture

The media often assesses governmental transparency issue by issue. The Obama Administration gets an annual rating for its performance on FOIA compliance. It receives press for its invocation on the state secrets privilege. And so on. But it may be worth taking stock of the total picture. From the state secrets privilege to the proposed SHIELD Act and FOIA, the Obama Administration seems in pursuit of black box government much like its predecessor. On reflection, the Administration’s call for a more transparent government in January 2009 seems a mismatch with its actions. In this way, theory and practice don’t coincide.

The Administration has not backed away from its predecessor’s aggressive use of the state secrets privilege. According to Steven Aftergood, “there is a great deal of continuity between the Bush and Obama administrations . . . . there is no case where the Obama administration has rescinded a claim of state secrets privilege that was advanced by the Bush [administration].” The U.S. government has recently invoked the state secrets privilege in instances that appear designed to hide government screw ups rather than to protect national security. For instance, the government hopes to block evidence in a case against a contractor who duped the government into spending millions on allegedly fake counterterrorism technology. It has invoked the privilege to block a personal injury lawsuit by a CIA employee who alleged that environmental contamination in his home made his family sick. In a case inherited from the Bush administration, Obama’s Justice Department has continued to argue that classified records of eavesdropping on an Islamic charity were state secrets. Two wiretapped lawyers were awarded $20,400 each, a ruling that last week the Obama administration indicated it would appeal. ACLU Executive Director Anthony Romero laments that although the President promised to reform abuses of the state secrets privilege as a candidate, he has reneged on that promise as the President.

The Obama Administration has devoted significant energy to punishing whistle blowers. As Politico reporter Josh Gerstein explains, the Administration is “pursuing an unexpectedly aggressive legal offensive against federal workers who leak secret information to expose wrongdoing, highlight national security threats or pursue a personal agenda.” Since President Barack Obama took office, prosecutors have filed criminal charges in five cases involving unauthorized distribution of classified national security information to the media and is now considering prosecuting WikiLeaks founder Julian Assange. The U.S. government, by contrast, only brought three such cases in the preceding 40 years. Moreover, in response to the Wikileaks disclosures, the Administration has gotten behind the proposed SHIELD Act, which would amend Section 798 of the Espionage Act of 1917. The amendment would expand the kinds of information covered by the Espionage Act and enables the U.S. government to prosecute private citizens who have not worked for the government or signed a security agreement.

In a recent post, I underscored that FOIA compliance continues to disappoint. The National Security Archive recently issued its report “Glass Half Full: 2011 Knight Open Government Survey Finds Freedom of Information Change But Many Agencies Lag in Following Obama’s Openness Order.”Although the group found some progress (49 agencies took concrete action in light of the March 2010 White House memorandum instructing agencies to update all FOIA material and assess whether their FOIA resources were adequate), its results were decidedly mixed. Only 24 agencies actually updated their FOIA training materials, only 13 agencies followed its mandate, and 41 of the agencies remained inert. Of those 41 agencies, 17 could not provide concrete records showing that they had followed the memo’s instructions; two agencies withheld documents by incorrectly citing FOIA exemptions; 17 agencies were still working on the request after more than 100 business days (in violation of FOIA); and four agencies never acknowledged the team’s requests despite numerous calls and faxes. Ancient requests, as old as 18 years, “still languish in the system.” As the team reports, twelve agencies have outstanding FOIA requests older than six years.” Eric Newton, an advisor to the Knight Foundation, remarked that “at this rate, the President’s first term in office may be over by the time federal agencies do what he asked them to do on his first day in office.” At a hearing before the House Committee on Oversight and Government Reform, FOIA expert Daniel Metcalfe expressed his disappointment by the “surprising slowness and incompleteness of the Obama Administration’s new FOIA policy implementation.” Metcalfe lamented the administration’s “do as I say, not as I do mentality,” as evinced by the performance of its lead agency, the Department of Justice, whose FOIA backlog is worse than it was a year ago.

Viewed together with my co-blogger Frank Pasquale’s insights on fusion centers (see our forthcoming article) and his important forthcoming book on The Black Box Society, the Obama Administration, issue for issue, seems to support black box government, not a transparent one.